Citation Nr: 0004849 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 93-11 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES Entitlement to an increased rating for residuals of a fracture of the mandible, currently evaluated 30 percent disabling. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active service from January 1971 to August 1971. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in February 1991 which denied increased ratings for the veteran's several service-connected disabilities. A rating decision in October 1992 denied, inter alia, a total disability rating based on individual unemployability. In May 1993, a hearing was held at the RO before C.W. Symanski, who is a member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The Board Remanded the case in October 1995 for further development of the record. In June 1998, the Board issued a decision that addressed several of the issues on appeal, but Remanded the issue concerning an increased rating for the service-connected mandibular fracture for an additional examination and for consideration of both the old and the revised rating criteria for dental/oral disabilities, and deferred consideration of the issue relating to a total disability rating based on individual unemployability. The actions requested in the Board's Remand having been completed, the case is now ready for final appellate consideration. FINDINGS OF FACT 1. Residuals of a fracture of the mandible are manifested by inter-incisal range of 36mm and lateral mandibular excursion of 3mm, and severe impairment of masticatory function, including significant pain. 2. Service connection is in effect for postoperative residuals of a fractured right mandible, rated 30 percent disabling; paralysis of the seventh cranial nerve, evaluated 20 percent disabling; postoperative residuals of a patellectomy and meniscectomy of the right knee, rated 20 percent disabling; postoperative residuals of a meniscectomy of the left knee, with patellar shaving, evaluated 10 percent disabling; traumatic deviated nasal septum, rated 10 percent disabling; headaches as a result of a head injury, rated 10 percent disabling; scars of the face, evaluated 10 percent disabling; right trigeminal nerve paresthesia, rated 10 percent disabling; left trigeminal nerve paresthesia, evaluated 10 percent disabling; residuals of a right ankle fracture, noncompensably disabling; and a tracheostomy scar, noncompensably disabling. A combined 80 percent rating has been assigned. 3. The veteran is not precluded from obtaining and retaining substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Residuals of a fracture of the mandible are not more than 30 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, and Code 9903 (1999). 2. The veteran is not individually unemployable due to service-connected disabilities. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.15, 4.16, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background The records show that the veteran was thrown from a Brahma bull during a rodeo during service in 1971. He was kicked in the face by the bull and sustained multiple injuries as a result, including fractures of his mandible and nasal septum and injury to his right knee. As a result, he developed a deviated nasal septum, trigeminal nerve paresthesia, and healed scars around his face. In addition, the mandible fracture caused difficulty with mastication, and the knee injury required a patellectomy and meniscectomy and resulted in muscle weakness and instability of the knee joint. Rating decisions in September 1971 and December 1972 granted service connection for 1) postoperative residuals of a patellectomy and meniscectomy of the right knee, with marked quadriceps weakness and severe instability, rated 30 percent disabling, 2) postoperative residuals of a fracture of the right mandible, with loss of mastication and weight loss, rated 30 percent disabling, 3) a traumatic deviated septum, evaluated 10 percent disabling, 4) moderately disfiguring scars of the face, rated 10 percent disabling, 5) paresthesia of the trigeminal nerve, evaluated 10 percent disabling, and 6) a healed tracheostomy scar, rated 0 percent disabling, for a combined schedular evaluation of 60 percent. The records show that, by 1973, the veteran was able to chew all kinds of food, he had gained approximately 10 pounds, and his sense of taste had returned. He stated that his jaw symptoms had improved considerably. A rating decision in June 1973 reduced the rating for the mandible fracture to 10 percent disabling. In 1972, the veteran fell when his right knee gave out and he injured his left knee, tearing the lateral meniscus. He subsequently underwent arthroscopic surgery on the left knee. A Board decision in April 1976 granted service connection for the left knee disability and the RO assigned a 20 percent rating for that disability. During a VA hospitalization in 1978, the veteran fell and sustained a severe sprain and/or fracture of his right ankle. The records do not reflect any significant residuals of the injury, however. A rating decision in 1978 granted service connection for residuals of a right ankle fracture and assigned a noncompensable evaluation for the disability. Because of continued pain on the left side of the veteran's face, eye, and forehead and the clinical finding of a displaced left mandibular meniscus, the meniscus was surgically removed and replaced with a Teflon implant in 1985. Due to persistent severe facial pain, the Teflon implant was replaced with a Silastic implant. On VA compensation examination he reported that he was on a soft diet because of his inability to masticate and that he couldn't comb his hair due to pain. He also complained of pain in his left ear, as well as constant pain in the left temporomandibular area and pain and paresthesia around his left eye. In addition, it was noted that he could not close his left eye. A rating decision in 1986 increased the rating for the mandible fracture to 30 percent and also granted service connection for paralysis of the seventh cranial nerve, with a 20 percent evaluation. In July 1986, the veteran was again hospitalized because of severe, continued pain in the left temporomandibular area. During that hospitalization, the Silastic implant was removed. Postoperatively, he did well and had minimal complaints of pain. A VA dental examiner wrote in June 1988 that the veteran had noted increased popping in his jaw over the previous year and also increased pain in the jaw. The examiner stated that the veteran was missing his left temporomandibular joint (TMJ) meniscus and the right meniscus was deteriorating. He stated that the veteran would eventually need total joint replacement. At that time, he was able to open his mouth 11/2 inches between incisal edges and had moderate movement in lateral and excursive modes, but with marked crepitus and discomfort. The veteran was hospitalized in October 1989 for evaluation of TMJ pain; during that hospitalization, arthroscopy of the right TMJ was performed. He was again hospitalized in March 1990 for lavage of his left TMJ. A VA neurological examiner noted in August 1990 that he had had headaches which had decreased from 1977 to 1983, but had increased since 1983. He had reportedly had severe episodes that had led to syncope. The examiner indicated that he had both post- traumatic headaches and musculoskeletal headaches and that the syncope was probably vasovagal in origin, secondary to the headaches. On examination, cranial nerves II through XII were noted to be intact and muscle strength was 5/5. There was decreased sensation in the right arm secondary to trauma to the right shoulder, apparently in either a motor vehicle or an industrial accident. On VA compensation examination in October and November 1990, an orthopedic examiner noted that the veteran had complained of occasional left knee dwelling and of his right knee giving way and being unable to support his weight, making it dangerous for him to lift heavy objects. On examination of the right knee, there was crepitus and some limitation of flexion, with mild pain at the limits of motion, but no ligamentous laxity or instability. Examination of the left knee revealed no swelling and slight limitation of flexion. There was no instability of the left knee and no pain to palpation about the knee. An ear, nose, and throat (ENT) examiner noted the veteran's facial and tracheostomy scars and decreased trigeminal sensation bilaterally, as well as external nasal deformity and nasal septal deviation internally. The oral/maxillofacial examiner in November 1990 noted the veteran's complaint of continuous left temporomandibular joint pain (and occasionally on the right side) and crepitation since 1986, despite treatment with a TENS unit, medication, heat, and a soft diet. Examination revealed approximately 40 percent of right lateral excursion with pain; left lateral excursion was approximately 100 percent with pain. Vertical opening of the veteran's mouth was possible to 35mm. Protrusive excursion was normal with pain. There was no interference with speech, but the veteran was unable to chew hard foods. The mandible was displaced 4mm to the right of midline. The examiner recorded the veteran's various facial scars and indicated that there was some left periocular weakness and right lower lid lag. Bone loss in the left TMJ due to degenerative joint disease was noted. The examiner reported numbness in the right and left lower lip, chin, the left cheek, and the left preauricular area-in the distribution of the fifth cranial nerve-but no sensory deficits in the seventh cranial nerve. In September 1991, a VA orthopedic clinic physician recommended that, because of the veteran's knee disabilities, he should avoid strenuous physical activities, especially those involving carrying heavy objects and squatting, as well as longer periods of walking and standing. He concluded that a sedentary type of work would be preferable. During a VA clinic visit in October 1991, the veteran reported that his right knee gave out frequently, causing him to fall. Another examiner in October 1991 indicated that he walked with a limp using a cane. The veteran wrote in January 1992, describing his various disabilities. He stated that he could no longer work as a brick layer because of his right shoulder, back, knees, and dizziness and that he had been turned down for a job at the Post Office because of his knees. He also indicated that when he tried working as a building inspector, his right knee gave out and he fell, injuring his head. In December 1991, the veteran filed a claim for a total disability rating based on individual unemployability due to service-connected disabilities. He reported at that time that he had received a GED and had work experience as a brick layer and, briefly, working in blueprints and job estimating. He stated that he was last employed full time in May 1990. On VA examination in April 1992, the veteran reported that he had been unemployed since 1988, although he did care for a few horses at times. He was unable to work as a brick layer any longer because of insecurity about his knees and knee pain and resultant falls. The examiner stated that walking was "good" and the veteran was able to do deep knee bends, but with some complaint of knee pain, particularly on the left. No knee instability or swelling was found. Range of right knee motion was from 0 to 135 degrees and in the left knee it was 0 to 140 degrees. Straight leg raise testing produced some low back discomfort and left knee discomfort. There was some mild sensory diminution over the medial left calf and foot. Forward back flexion was possible to within 6 inches of the floor, with discomfort only across the lower back. Back motion was limited only in forward flexion-to 50 degrees. Motion in all other axes was normal. The examiner recommended that the veteran avoid strenuous activities, as well as activities involving lifting and carrying of weights. A neurological examiner noted the veteran's complaints of intermittent paresthesias in his face and numbness of the right side of his face, in addition to pain and numbness over his face since 1971. The examiner described the veteran's facial scars and decreased sensation to pinprick and light touch over the right mandible. There was no facial asymmetry. Motor strength was full throughout. The veteran's gait was normal. A personal hearing was conducted before a hearing officer at the RO in July 1992. The veteran testified that he had had increasing trouble with his right knee giving way and causing him to fall. He also described having a lot of aching, as well as sharp pain, in both knees. He reported that he had been unable to get work as a brick layer since 1988 because of his problems with his knees. The veteran stated that he couldn't drive a truck commercially because he couldn't pass the physical. He testified that he also couldn't work at the Post Office because of his legs. He reported that, although he used to train horses, he could no longer do that because of his legs. The veteran stated that he used slide-on knee supports and, at times, a cane. Concerning his jaw, the veteran described having a lot of grinding and pain in his face, sometimes preventing him even from shaving. He indicated that he couldn't eat hard foods, like steak, without getting a lot of pain. He reported that he used a TENS unit that, he believed, provided some relief. A VA psychologist evaluated the veteran in May 1992 in conjunction with his application for VA Vocational Rehabilitation benefits. The psychologist concluded that the veteran was most likely capable of success in a community college environment in pursuing a career in drafting, but noted that he had been developing his own small business and may no longer be pursuing vocational rehabilitation. A personal hearing was conducted before the undersigned Member of the Board at the RO in May 1993. The veteran essentially reiterated his earlier testimony and statements regarding his knees and inability to work. He did say that he had tried a number of jobs that didn't entail much lifting. But they primarily were in the sales field and required walking, which he couldn't tolerate. He also related that, although he was working with Vocational Rehabilitation, he had trouble with occasional blurred vision after reading very much. Regarding his jaw disability, he stated that sometimes the pain was so bad he couldn't wear his dentures. The veteran again noted that he had to eat a soft diet, so he could just swallow the food without much, if any, chewing. He also referred to chronic problems with his back and a recent incident in which he fell off a wagon, injuring his neck and left shoulder. He indicated that it was because of his back and left shoulder that he couldn't pass the Post Office physical. The veteran described having severe headaches, sometimes so severe that he couldn't lift his head off the pillow. He testified that bright lights at night, in particular, would initiate a headache. Finally, he stated that the small business he was trying to start, which involved shoeing horses, didn't look promising because it involved a lot of lifting, which he couldn't do. Also, he had not filed for Social Security disability. VA outpatient records dated from November 1993 to November 1995 reflect periodic complaints concerning the veteran's non-service-connected back and left shoulder disorders, headaches and neck and back pain following a car accident, and evaluation for glasses, as well as complaints of pain in his knees, pain on mastication. Records dated in August and September 1994 state that it was unlikely that the veteran could return to his job as a brick layer because he could not use proper back mechanics and so would aggravate his degenerative disk disease. The examiner indicated that the veteran could still be gainfully employed, but would need vocational retraining. Also of note is a November 1995 report at which time the veteran denied any symptoms of pain, popping, or loss of motor function in either knee. On examination at that time, there was full range of knee motion, mild crepitus, and good strength. The record indicates that the veteran was at that time attempting to gain employment at the Post Office. In January and February 1996 the veteran underwent VA compensation examination by a number of examiners. An orthopedic examiner recorded the veteran's complaints of increasing pain in his knees, as well as numerous complaints regarding his back, both shoulders, and his left elbow and wrist. It was noted that the veteran agreed that he was able to carry out sedentary activities and normal activities of daily living and could work at light duty work, if available. On examination, he moved about easily and changed positions rapidly. His gait was normal and rapid and he pivoted and twisted easily and without pain. The veteran was able to squat to about 120 degree of knee flexion with some bilateral knee discomfort. Both knees were well aligned, with no evidence of swelling or unusual tenderness. The ligaments were stable and there was no sign of mechanical derangement within. Flexion of the right knee was possible from 0 to 130 degrees, while the left knee flexed from 0 to 140 degrees. The quadriceps muscles appeared well toned bilaterally. The examiner commented that the veteran could work full time in light duty work if he possessed the necessary skills and had the opportunity to do so. He doubted that he could return to work as a brick mason or similar manual labor work activity. A neurological examiner noted the veteran's complaints of numbness over the lower right and left sides of his face. He denied any facial weakness. He indicated that he was able to chew and speak without difficulty. On examination, there was slightly decreased sensation to pinprick perorally around the incision site in the right maxillary and mandibular regions; no paresthesia was noted. The face was symmetrical, with no weakness of facial muscles of mastication or either orbicularis oculi. The veteran was able to whistle, chew, and smile without any difficulty. No other cranial nerve abnormality was reported. The examiner concluded that there was partial trigeminal nerve impairment, with partial facial numbness, but without any paresthesia. He did not detect any paralysis of the seventh cranial nerve. The dental examiner in January 1996 reported the veteran's complaints of popping, clicking, and pain in the right and left TMJ, as well as difficulty chewing, numbness of the chin and upper and lower lips on the right, and generalized soreness of the mouth. On examination, there was popping and clicking, with pain in both TMJs on opening the mouth. The mandible deviated 1cm to the left on opening. The examiner commented that the veteran's chronic jaw pain caused him difficulty eating and sleeping. A general medical examiner noted similar complaints an clinical findings. Further, he described the veteran's various facial scars, indicating that they were all well healed. The largest scar, however, was slightly depressed, although there were no contractures and no gross distortion of the face. The veteran was unable to extend his right knee beyond 5 degrees or his left knee beyond 3 degrees. Flexion of both knees was possible to 130 degrees with moderate discomfort. There was generalized enlargement of both knee joints, but no localized tenderness. The previously fractured right ankle had healed normally, without residual functional impairment, limitation of motion or residual deformity. The nasal septal deviation was reported to be mild and to result in no functional limitation or airway obstruction. The examiner characterized the veteran's mandibular disability as having a mild to moderate impact on his capacity for mastication. Color photographs of the veteran's face show several scars, as previously reported, the most obvious of which extends from the right corner of his mouth inferiorly diagonally for approximately 3 inches to the inferior border of the mandible and produces moderate disfigurement. The veteran wrote in March 1996 to correct apparent mischaracterization of his reported symptoms by the above examiners. He stated that he had sought alternative medical therapy, in the form of acupuncture and chiropractic medicine, in an attempt to alleviate his pain. He noted that he had been forced to return to work as a bricklayer in order to have a decent standard of living, even though it was very hard for him. The veteran indicated that he had been trying to go through VA to take classes to train him for less demanding work, but that VA seemed to think that areas other than those that interested him would be better. He continued to express his desire for training for a less physically demanding job. In May 1997, opinions were obtained from VA general medical and ENT physicians and a dentist (the latter two examined the veteran in January 1996) regarding the effect of the veteran's various disabilities on his ability to work. The ENT examiner reviewed the previous examinations and opined "from an ear, nose and throat point of view that there is no contra-indication to [the veteran's] working in many areas of employment and this within the limitations of his general systemic proprioceptive histories and surgeries." The examiner noted that the veteran "was putting up hay on his farm and that he worked at his own pace and was able to do so working with brick laying, furnace work, and also working at his own pace and without too much difficulty." The examiner concluded that the veteran would be able to "carry on some sort of a gainful occupation." The general medical examiner also reviewed the entire record and opined that the veteran's "employability" should be considered to be limited to sedentary or office-desk type work or clerical work. He stated that the veteran was "incapable of repetitive lifting, balancing, climbing of ladders, handling heavy equipment, stooping, crawling, driving a truck, etc.," due primarily to his orthopedic injuries, indicating that his other problems were "sufficiently impeding to influence his employability." Finally, the dental examiner opined that the veteran's "previous mandibular and maxillary healed fractures should not interfere with his ability to work." He noted that if he "experiences further inability to masticate food properly and that interferes with his nutritional uptake he may not be able to work in a job that requires strenuous physical labor." In June 1998, the Board Remanded the case for an examination by a maxillofacial or dental specialist and for the RO to consider the veteran's claim under both the old and the revised rating criteria for dental disorders. A VA outpatient record dated in May 1998 indicates that the veteran complained of aching in both knees when the weather changed and that his symptoms were under good control with aspirin. No pertinent abnormal clinical findings were recorded. The nurse did comment that the veteran was an active farmer and brick layer. A physician noted that the veteran's traumatic degenerative joint disease of both knees was stable on aspirin as needed and that his TMJ pain was "stable on aspirin off and on (accepted the pain)." In June 1998, a VA dental examination was conducted. The examiner described the veteran's major facial scar as previously noted and indicated that there was paresthesia in the distribution of the trigeminal nerve. The veteran reported that the most troublesome pain to him was in his left TMJ where "the pressure is so intense that he places a finger in his left ear canal to release the pressure many times each day." The examiner stated that there was considerable loss of masticatory function. His maximum interincisal opening was 36mm with TMJ popping accompanying the opening. There was 3mm of lateral excursion in each direction with pain accompanying those movements. The examiner opined that the veteran's symptoms "reduce mastication efficiency by 50% and with the accompanying pain, decreases efficiency to only 25% of normal function." That examiner did not specifically comment on the effect of the disability on the veteran's ability to work. A letter from a VA Counseling Psychologist in June 1999 states I agree that you should no longer pursue employment as a brick mason due to functional limitation associated with your service-connected and non- service-connected disabilities. However, you have been able to develop your own business, [], which seems to be compatible with your interests, aptitudes and physical abilities. While not provided the same high hourly wage you received as a brick mason, this work provides a source of income, is consistent with your interests and personality, provides personal satisfaction, is more compatible with your physical limitations and restrictions, and appears to have growth potential. Under the circumstances, I have found you to be suitably employed and not entitled to specific vocational rehabilitation services. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Drosky v. Brown, 10 Vet. App. 251 (1997). The Board finds that the veteran's claim concerning this issue is well grounded. In addition, there is no indication that there are additional, unsecured records that would be helpful in this case. Therefore, the Board has no further duty to assist the veteran in developing his claim. 38 U.S.C.A. § 5107(b). Disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Although regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In evaluating the veteran's claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Increased rating In February 1994, during the pendency of the veteran's appeal, VA revised the criteria for evaluating dental disorders. The United States Court of Appeals for Veterans Claims (Court) has held that when regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran is entitled to a decision on his claim under the criteria which are most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The residuals of the veteran's mandible fracture are most appropriately rated under the diagnostic code for nonunion of the mandible. That particular diagnostic code did not change and provides that severe nonunion of the mandible is to be rated 30 percent disabling. For moderate impairment, a 10 percent evaluation is warranted. The note indicates that the severity of impairment is dependent on the degree of motion and the relative loss of masticatory function. Code 9903. Diagnostic Code 9905, as in effect prior to February 1994, provided that, if motion of the temporomandibular articulation is limited to 1/4 inch (6.3mm), a 40 percent rating is to be assigned. A 20 percent evaluation is appropriate for limitation to 1/2 inch (12.7mm). Any definite lesser limitation, interfering with mastication or speech warrants a 10 percent rating. Code 9905. Code 9905 was revised in February 1994 to provide the following ratings for limitation of motion of the temporomandibular articulation: Inter-incisal range: 0-10mm 40 percent 11-20mm 30 percent 21-30mm 20 percent 31-40mm 10 percent Limitation of lateral excursion to 4mm or less warrants a 10 percent evaluation. However, ratings for limited inter- incisal movement shall not be combined with ratings for limited lateral excursion. Code 9905. The record shows that measurement of the movement of the veteran's mandible has remained essentially unchanged since 1990: the inter-incisal range is 35-36mm and lateral excursion is limited to 3mm in each direction. Applying Code 9905, no more than a 10 percent rating is warranted based on limitation of inter-incisal movement, under either the criteria in effect prior to or after February 1994. Alternatively, a 10 percent rating may be assigned based on limitation of lateral excursion under the revised criteria. Code 9903 provides that nonunion of the mandible is also to be evaluated on the basis of relative loss of masticatory function, with a 30 percent rating being warranted for severe impairment. The June 1998 VA examiner indicated that the veteran's symptoms, including pain, reduced his masticatory efficiency to approximately 25 percent of normal function. Such a reduction in masticatory function constitutes severe impairment, for which a 30 percent rating is appropriate. However, a 30 percent rating is currently in effect and that is the maximum rating assignable under the rating schedule for the veteran's mandible disability on that basis. Therefore, considering the various aspects of the veteran's mandible disability, including impairment due to pain, an increased rating is not warranted at this time. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran's claim and that, therefore, the provisions of § 5107(b) are not applicable. Total disability rating based on individual unemployability Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In reaching its determination in this case the Board has followed the analysis of the United States Court of Veterans Appeals (Court) in Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court held that for a veteran to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor which takes his/her case outside the norm. 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high schedular rating which is assigned is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Moreover, there is no statute or regulation which requires VA to conduct a job market or employability survey to determine whether a claimant is unemployable as a result of one or more service-connected disabilities. See Gary v. Brown, 7 Vet. App. 229 (1994); see also Beaty v. Brown, 6 Vet. App. 532, 538 (1994). However, unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. For purposes of entitlement to individual unemployability due solely to service-connected disabilities, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.17. Factors to be considered, however, will include the veteran's employment history, educational attainment and vocational experience. 38 C.F.R. § 4.16. Service connection is currently in effect for postoperative residuals of a fractured right mandible, rated 30 percent disabling; paralysis of the seventh cranial nerve, evaluated 20 percent disabling; postoperative residuals of a patellectomy and meniscectomy of the right knee, rated 20 percent disabling; postoperative residuals of a meniscectomy of the left knee, with patellar shaving, evaluated 10 percent disabling; traumatic deviated nasal septum, rated 10 percent disabling; headaches as a result of a head injury, rated 10 percent disabling; scars of the face, evaluated 10 percent disabling; right trigeminal nerve paresthesia, rated 10 percent disabling; left trigeminal nerve paresthesia, evaluated 10 percent disabling; residuals of a right ankle fracture, noncompensably disabling; and a tracheostomy scar, noncompensably disabling. A combined 80 percent rating has been assigned. First, the Board notes that the veteran does meet the percentage criteria for a total disability rating based on individual unemployability as set forth in § 4.16(a) as he has multiple service connected disabilities resulting from a single accident which combine to a rating in excess of 40 percent and his combined rating is in excess of 70 percent. Accordingly, the question is whether the veteran is capable of performing the mental and physical acts connected with substantially gainful employment. The medical evidence indicates that the veteran's mandible disability should not interfere with his ability to work, unless his masticatory ability is so impaired that it interferes with his nutrition. Although the veteran has stated that he cannot chew hard food and must adhere to a soft diet, there is no medical evidence of any nutritional impairment in this case. The record shows that examiners have stated that the veteran is overweight, as further evidence that no nutritional impairment is present at this time. Accordingly, the Board finds that the veteran's mandible disability does not significantly impact his ability to work. The record shows, however, that the veteran's service- connected knee disabilities may limit his ability to perform heavy labor. Examiners, including in May 1997, have stated that the veteran is incapable of repetitive lifting, balancing, climbing of ladders, handling heavy equipment, stooping, crawling, and driving a truck, primarily due to his orthopedic problems, such that he should be considered limited to sedentary or office-type work. Nevertheless, the May 1997 examiner indicated that the veteran was then able to put up hay and do brick laying and furnace work "without too much difficulty" and working at his own pace. The Board recognizes that the veteran has only a high school education and limited work experience since service. However, the evidence of record clearly shows that he could work in positions that do not require heavy manual labor. Moreover, the evidence indicates that, despite his various orthopedic disabilities-some of which are not service-connected-the veteran was at that time working as a farmer and a brick layer. On the basis of the evidence of record, therefore, the Board is unable to find that the veteran's knee disabilities produce an inability to perform duties associated with substantially gainful employment. Moreover, although service connection is currently in effect for a number of other disabilities, the record does not show that any of those disabilities significantly decreases the veteran's ability to work. Paralysis of the seventh cranial nerve and paresthesia in the distribution of the left and right trigeminal nerves do not affect his employability. Likewise, his facial and tracheostomy scars do not impede his ability to work. The veteran's headaches have not been shown in recent years to cause significant disability. And the record does not indicate that his right ankle fracture has been symptomatic at all for many years. It should be pointed out that the high combined schedular rating which has already assigned is recognition that the veteran's service-connected disabilities may make it difficult for him to obtain and keep employment. It should also be noted that he has worked in VA's Vocational Rehabilitation program to try to train him for more suitable work. Further, the June 1999 letter from a VA counseling psychologist indicates that the veteran had developed his own business and that he appears to be working in that job satisfactorily. On the basis of the evidence of record and in view of the fact that the veteran is currently apparently gainfully employed and also considering his educational attainment and employment history, the Board concludes that his service- connected disabilities do not produce such impairment as to render him unable to secure or follow a substantially gainful occupation. Accordingly, his claim for a total disability rating based on individual unemployability due to service- connected disabilities must be denied. In this case, the Board finds that the preponderance of the evidence is against the veteran's claim and that, therefore, the provisions of § 5107(b) are not applicable. ORDER An increased rating for residuals of a fracture of the mandible, currently evaluated 30 percent disabling, is denied. A total disability rating based on individual unemployability based on service-connected disabilities is denied. C. W. Symanski Member, Board of Veterans' Appeals